Police Liability for Failure to Comply with Lawful Duty

Article excerpt

Odhavji Estate v. Woodhouse, Gerrits and Boothby, et al.

In this case the estate of Manish Odhavji sued two Ontario detectives and a Chief of Police for the tort of misfeasance (impropriety) in public office. According to the pleadings the defendant officers had engaged in intentional breaches of their legal duties which resulted in undermining an external non-police investigation into the death of Odhavji. These failures and omissions of duty were alleged to have resulted in physical, psychological, and emotional suffering to the Odhavji family and consequently $2,000,000 in damages.

On September 26, 1997 Odhavji, who was unarmed, was fatally shot by two detectives as he ran from his vehicle after a bank robbery. A civilian agency, the Special Investigations Unit (S.I.U.) of the Ministry of the Solicitor General, was notified of the shooting within 25 minutes of the incident by an assistant to the Chief of Police. The S.I.U. began an immediate investigation and directed that the officers involved: (1) remain segregated, (2)make themselves available for same day interviews by the S.I.U. and (3) provide their shift notes, on-duty clothing, and officer blood samples. Police officers in Ontario are duty bound by section 113(9) of the Ontario Police Services Act to cooperate with all S.I.U. investigations in circumstances of death or serious injury caused by the police and Senior Officers are required by the same legislation (s. 41(1)--Police Services Act) to ensure that sworn officers carry out all prescribed duties.

Notwithstanding the explicit duty obligated by the Police Services Act neither of the detectives attended for same day interviews with the S.I.U., nor did they immediately turn over the stipulated items, or remain segregated. Instead the officers attended for interviews four days after the events at which time they provided written statements and complied with earlier S.I.U. instructions to turn over notes, clothing, and blood samples. In the lawsuit this manner of response by the officers was alleged to have been unlawful, untimely, and highly detrimental to a thorough and complete independent fatality investigation. In addition it was asserted that the non-segregated statements that were eventually provided were both inaccurate and misleading. It was furthermore claimed that the Chief of Police had deliberately failed in his duty as the two detectives were not obliged by his office to comply with the directions issued by the S.I.U.

The lawsuit by the Odhavji estate was initially allowed to proceed in the General Division of the Ontario Superior Court even though the defendants argued that the action should not be permitted as the circumstances, even if proven as alleged, did not amount to the tort of misfeasance in public office. This lower court determination was successfully appealed to the Ontario Court of Appeal which set aside the initial adjudication. The Odhavji estate then successfully appealed to the Supreme Court of Canada which allowed that the action was lawfully grounded and could proceed under the tort of misfeasance.

The judgment of the Ontario Court of Appeal disallowing the lawsuit focused on the historical legal underpinnings of the tort of misfeasance in office and why the pleadings by the Odhavji estate did not meet the necessary criteria for such an action. In this respect much reliance was placed on a three hundred year old legal case from England (Ashby v. White (1703), 92 E.R. 126 (K.B.)). According to the Ontario Court of Appeal this decision was compelling authority that the defining element of the misfeasance tort was an abuse of power of office resulting in damage to another. …